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HomeMy WebLinkAbout79-072 LeymarieDISCUSSION: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION December 19, 1979 Edward Leymarie, Jr. Borough of Elwood City 525 Lawrence Avenue Elwood City, PA 16117 RE: Political Subdivision Tort Claims Act, 53 P.S. 5311.101 et seq. FACTS: 79-072 On September 26, 1979, Edward Leymarie, Jr., Esquire, Solicitor for the Borough of Elwood City, requested advice as to whether councilmen named in a lawsuit may vote on whether the Borough shall pay for their legal defense, pursuant to the Political Subdivision Tort Claims Act. On September 13, 1979, Mary Ann Fleo filed a Complaint, Fleo v. Gato, et al in the United States District Court for the Western Federal Judicial District against Richard Gato, President of Borough Council, and others. The suit alleged libel and Civil Rights Act violations. On October 15, 1979 Chief Counsel issued an Advice holding that the State Ethics Act did not bar members of Borough Council from voting on whether legal defense fees should be provided them. This Advice was withdrawn on October 22 upon appeal by Borough Manager Ferrese and others. On November 7, 1979, the State Ethics Commission heard testimony from Solicitor Edward Leymarie, and various individuals sympathetic to the Complainant, Mary Ann Fleo. The Commission directed Chief Counsel to make further inquiries into these allegations, which were answered by John Alan Conte, counsel for the Respondents named in the Civil Suit. The threshhold issue is whether the Political Subdivision Tort Claims Act may be utilized at all in connection with a federal civil rights suit. OPINION PAGE 2 council and the State Ethics Commission. The statements of financial interest are due by May 1, if appointed prior to May 1, and upon appointment appointed after May 1. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the advice given. This letter is a public record and will be made available as such. PAUL J. W ITH Chairma (SEAL) UPDATE: A Pennsylvania Supreme Court ruling (436 A.2d 186) addressed this facutal determination. The court ruling states that all part - time solicitors to political subdivisions are neither public employees nor public officials within the scope of the Ethics Act. Consequently, the Ethics Commission has no jurisdiction over solicitors to political subdivisions. See Update 79 -034.